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After the issue of whether same spousal benefits and tax reporting rights shall equally apply to same-sex married couples had been vigorously argued in the Court of First Instance and the Court of Appeal (CA), it was finally concluded by the Court of Final Appeal (CFA) last week. By a unanimous decision, the CFA ruled that same-sex couples who were legally married overseas should enjoy the same spousal benefits and right for joint assessment.
The appellant Leung Chun Kwong (Leung) is an immigration officer subject to Civil Service Regulations (CSRs). Leung and his same-sex partner were married in 2014 in New Zealand where same-sex marriage is legal. After his marriage, Leung inquired with the Civil Service Bureau whether he was required to update his marital status but was informed that his same-sex marriage would not constitute a change in marital status for the purpose of the CSRs, such that his same-sex spouse was denied entitlement to spousal medical and dental benefits (Benefits Decision).
Similarly, Leung tried to apply for joint assessment with his same-sex spouse. However, the Inland Revenue Department (IRD) rejected his application because Leung’s marriage did not fall within the definition of “marriage” under the Inland Revenue Ordinance (IRO) which only recognises a heterosexual marriage (Tax Decision).
Leung applied for judicial review and argued that both the Benefits Decision and the Tax Decision unlawfully discriminated against him on the ground of his sexual orientation.
The Court of First Instance allowed the application for judicial review of the Benefits Decision but dismissed that of the Tax Decision.
The Secretary for the Civil Service (Secretary) appealed and Leung cross-appealed to the CA. The CA allowed the Secretary’s appeal and held that although the Benefits Decision might constitute indirect discrimination, it was nevertheless justified as being necessary to achieve the legitimate aim of protecting and not undermining the status of marriage under the laws of Hong Kong. The CA also dismissed Leung’s cross-appeal against the Tax Decision for similar reasons to the Benefits Decision.
The CA granted Leung leave to appeal to the CFA in respect of the following questions of great, general or public importance:
Is the legitimate aim of protecting and/or not undermining the concept and/or institution of marriage, being the voluntary union for life of one man and one woman to the exclusion of all others, as understood in and under the laws of Hong Kong, rationally connected to the difference in treatment, between a person who is a party to such a marriage and a person who is a party to a same-sex marriage entered into outside Hong Kong according to the law of that place; (i) for the purpose of conferral of spousal benefits under the CSRs; (ii) for eligibility for joint assessment under the IRO;
Are the local legal landscape and societal circumstances including prevailing socio-moral values of society on marriage relevant to the issue of proportionality and/or justification; and
Have the Secretary (in the Benefits Decision) and the Commissioner of IRD (Commissioner) justified the difference in treatment?
It is a cardinal principle of a system governed by the rule of law that all persons are equal before the law. Referring to the legal principles given in the CFA’s recent decision in QT v Director of Immigration (2018), the CFA reiterated that there are different forms of differential treatment which may be regarded as discriminatory and that unlawful discrimination is “fundamentally unacceptable” unless it can be justified.
The CFA considered the nature of the marriage between Leung and his same-sex spouse is in an analogous position to that of a heterosexual couple. Their marriage has the same readily identifiable characteristics of publicity and exclusivity as a heterosexual marriage. Hence, the denial of spousal benefits to Leung in respect of the two challenged decisions on the ground of his sexual orientation would constitute unlawful discrimination, if not justified.
Turning to the question of justification, the CFA accepted that the protection of the institution of marriage in Hong Kong, being the voluntary union for life of one man and one woman to the exclusion of all others, is a legitimate aim. However, the CFA could find no rational connection between the differential treatments in question with such an aim in the present case. The CFA was of the view that, traditionally the conferment of financial benefits on spouses in the contexts of employment and taxation was to acknowledge the economic reality of the male (usually) as the breadwinner of the family. In the case of employment within the civil service, medical and dental benefits were provided to encourage the recruitment and retention of staff. Joint tax assessment on the other hand helped to lessen the overall tax burden on a family. Therefore, the efficient administration of government and the collection of revenue had nothing to do with protecting the institution of marriage. Accordingly, the CFA did not accept the proposition that heterosexual marriage would be undermined by the extension of the employment and tax benefits to same-sex married couples.
Regarding the Benefits Decision, the CFA further noted the Hong Kong Government’s published policy as an equal opportunities employer which provided that the Government is “committed to eliminating discrimination in employment”, and vacancy is “open to all applicants meeting the basic entry requirement irrespective of their disability…sexual orientation and race”. Further, the Secretary had adopted a “Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation”. Based on such employment policies, the CFA found it difficult to see how the Secretary could avoid discrimination by denying a same-sex married couple to the same employment benefits that were available to a heterosexual married couple.
Finally, the CFA noted the IRO does not serve the purpose of promoting traditional heterosexual monogamous marriage as it recognises a polygamous marriage by extending the definition of “marriage” to that between a man and his principal wife. The contention of there being a rational connection with the legitimate aim of protecting the institution of marriage as understood under Hong Kong law (i.e. heterosexual and monogamous) was accordingly further undermined.
In light of the above, the CFA concluded that the Secretary and the Commissioner were unable to justify the differential treatments in the present case in respect of the Benefits Decision and the Tax Decision.
Whilst the CFA judgement concerns the civil servants of the Government, its effect on the private sector is yet to be seen – there may be arguments on implied duty of trust and confidence that the provisions of an employment contract should be in compliance with the constitution of Hong Kong, or employees may seek a declaration if any provision is unconstitutional. It is uncertain as to whether the courts will accept the aforesaid arguments/claim in the private sector. In any event, it is advisable for employers to review their policies and check whether their current benefits apply equally to both heterosexual married couples and same-sex married couples to avoid unfair discrimination from taking place.
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